Via Vickie Pynchon's Negotiation Law Blog

Below is correspondence from the Southern California Mediation Association about the proposed new regulation that landed in my in-box today. It includes links to arguments pro and con and urges mediators who are interested in the issue to contact the responsible parties.

Dear Colleagues:

In case you were finding your mediation world too calm this summer, let me introduce you to SR 05-01-2012, a resolution on mediator regulation that will be before the Conference of California Bar Associations at their meeting in October. Under this resolution, among other things:

1. “Mediator” is defined as “a neutral third-party who for compensation conducts a mediation.” (Emphasis added.)

2. Standards of conduct and minimum qualifications for mediators would be up to the Judicial Council.

3. Procedures for enforcing the standards of conduct would also be up to the Judicial Council.

4. The State Bar would be responsible for certification and registration of mediators.

5. The State Bar Court would be responsible for mediator discipline and would be directed to “use the same procedures in adjudicating the fitness of a mediator to mediate as it does in adjudicating the fitness of an attorney to practice law.”

Here is the the actual language of the resolution.

The issue of mediator regulation has been of intense interest to mediators across the country for years, and much has been written on the topic. The Association for Conflict Resolution (ACR) in October of last year adoptedModel Standards for Mediator Certification Programs,which are well worth looking at to gain an appreciation for the complexity of the problem. 

What is proposed by SR 05-01-2012 is regulation of mediators not by the private sector but by the state. The arguments both for and against state regulation have been collected by Diane Levin on her blog.

Further, however, SR 05-01-2012 proposes regulation of mediators specifically by the State Bar. One commentator has observed that state bar regulation would likely target non-lawyers, be biased in favor of lawyers, and do nothing to ensure mediator competence. See Philip J. Loree’s article The Case Against State Regulation of Mediators. 

If this resolution is approved by the Conference of California Bar Associations, it would then advance to the California legislature.

You can comment on SR 05-01-2012 by writing to the Executive Director, Conference of California Bar Associations, c/o Kronick, Moskovitz, Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California 95814. Email: info@calconference.org

This resolution was called to our attention by the California Dispute Resolution Council (CDRC). CDRC is our advocate in Sacramento, looking out for ADR and ADR practitioners. If you are not yet familiar with CDRC, check out their website at CDRC.net.

Barbara Brown

President

Southern California Mediation Association